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THE CONSTITUTION 


AND 


THE SUPREME. COURT OE THE UNITED 
STATES 01' AMERICA. 


Hbbresses 


BY THE 

Hon. Samuel F. Miller, 

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Senior Justice of the Supreme Court of the United States. 


D. APPLETON & CO. 


A^jE:JV YORK: 

I, 3 and 5 Bond Street. 


LONDON: 

Caxton House, Paternoster Square. 






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Printed by 

Allen, Lane & Scott, 
Philadelphia. 




THE CONSTITUTION 


AND 


THE SUPREME COURT OF THE UNITED 
STATES OF AMERICA. 


Hbbresses 

BY THE 

Hon. Samuel F. Miller, 


Senior Justice of the Supreme Court of the United States. 



D. APPLETON & CO. 


NEW YORK: 

I, 3 and 5 Bond Street. 


LONDON: 

Caxton House, Paternoster Square. 


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CONTENTS. 


PAGE 

Memorial Oration at the Centennial Celebration of the Constitution ... 5 

Address before Alumni of the Law Department of the University of Michigan 35 






MEMORIAL ORATION, 


DELIVERED AT 


The Celebration of the One-Hundredth Anniversary 


OF THE 


FRAMING AND PROMULGATION OF THE 
CONSTITUTION OF THE UNITED 
STATES OF AMERICA, 


IN 


Independence Square, Philadelphia, September 17th, 1887. 






Mr. President and Fellow-Countrymen : 

The people of the United States, for ten or twelve years 
past, have commemorated certain days of those different 
years as the centennial anniversaries of important events in 
their history. These gatherings of the people have been in 
the localities where the historic events occurred. It is a little 
over eleven years since the great centennial anniversary of 
the adoption of the Declaration of Independence was cele¬ 
brated in this city, where the Congress sat which proclaimed 
it. The grand industrial exhibition, the august ceremonies 
of the day, and all the incidents of the commemoration, in 
no respect fell below what was demanded by the importance 
of the occasion. May it be long before the people of the 
United States shall cease to take a deep and pervading inter¬ 
est in the Fourth of July, as the birthday of our national life, 
or the event which then occurred shall be subordinated to any 
other of our national history. 

We are met here to commemorate another event in our 
progress, in many respects inferior to none in importance in 
our own history, or in the history of the world. It is the for¬ 
mation of the Constitution of the United States, which, on 
this day, one hundred years ago, was adopted by the conven¬ 
tion which represented the people of the United States, and 
which was then signed by the delegates who framed it, and 
published as the final result of their arduous labors,—of their 
most careful and deliberate consideration,—and of a love of 
country as unmixed with selfishness as human nature is capa¬ 
ble of. 

In looking at the names of those who signed the instru¬ 
ment, our sentiment of pious reverence for the work of their 
hands hardly permits us to discriminate by special mention of 

(7) 


an)^ But it is surely not in bad taste to mention that the 
name of George Washington is there as its first signer and 
president of the convention ; the man of whom it was after¬ 
wards so happily declared by the representatives of a grate¬ 
ful people, that he was “first in war, first in peace, and first 
in the hearts of his countrymen.’' He was the first man se¬ 
lected to fill the Chief Executive office of President created 
by the Constitution ; and James Madison, another name 
found in the list of signers, filled the same office. 

James Wilson, of Pennsylvania, John Blair, of Virginia, 
and John Rutledge, of South Carolina, were made justices of 
the court established by that instrument, with a large view 
among its other functions of expounding its meaning. With 
no invidious intent it must be here said that one of the great¬ 
est names in American history—Alexander Hamilton—is 
there as representing alone the important State of New 
York, his colleagues from that State having withdrawn from 
the convention before the final vote on the Constitution. 
Nor is it permissible, standing in this place and in this con¬ 
nection, to omit to point to the name of Benjamin Franklin, 
the venerable philosopher and patriot; of Robert Morris, the 
financier of the Revolution ; and of GouverneurTVIorris, the 
brilliant scholar and profound statesman. 

It is necessary to any just appreciation of the Constitu¬ 
tion, whose presentation for acceptance to the people of the 
United States a hundred years ago, on this day we commem¬ 
orate, that some statement of its origin, and of the causes 
which led to it, should be made. The occasion requires that 
this shall be brief. 

The war of seven years, which was waged in support of 
the independence of these States, former provinces of Great 
Britain,—an independence announced by the Declaration of 
July 4th, 1776, already referred to,—the war which will 
always be known in the history of this country as the war of 
the Revolution, was conducted by a union of those States 


9 


under an agreement between them called Articles of Con¬ 
federation. Under these articles each State was an integer 
of equal dignity and power in a body called the Congress, 
which conducted the affairs of the incipient nation. Each of 
the thirteen States which composed this confederation sent to 
Congress as many delegates as it chose, without reference to 
its population, its wealth, or the extent of its territory; but 
the vote upon the passage of any law, or resolution, or action 
suggested, was taken by States, the members from each 
State, however numerous or however small, constituting one 
vote, and a majority of these votes by States being necessary 
to the adoption of the proposition. 

The most important matters on which Congress acted 
were but little else than recommendations to the States, re¬ 
questing their aid in the general cause. There was no power 
in the Congress to raise money by taxation. It could declare 
by way of assessment the amount each State should contrib¬ 
ute to the support of the Government, but it had no means 
of enforcing compliance with this assessment. It could make 
requisitions on each State for men for the army which was 
fighting for them all, but the raising of this levy was wholly 
dependent upon the action of the States respectively. There 
was no authority to tax, or otherwise regulate, the import or 
export of foreign goods, nor to prevent the separate States 
from taxing property which entered their ports, though the 
property so taxed was owned by citizens of other States. 

The end of this war of the Revolution, which had estab¬ 
lished our entire independence of the crown of Great Britain, 
and which had caused us to be recognized theoretically as a 
member of the family of nations, found us with an empty 
treasury, an impaired credit, a country drained of its wealth 
and impoverished by the exhaustive struggle. It found us 
with a large national debt to our own citizens and to our 
friends abroad, who had loaned us their money in our des¬ 
perate strait ; and worst of all, it found us with an army of 


lO 


unpaid patriotic soldiers who had endured every hardship 
that our want of means could add to the necessary incidents 
of a civil war, many of whom had to return penniless to 
families whose condition was pitiable. 

For all these evils the limited and imperfect powers con¬ 
ferred by the Articles of Confederation afforded no adequate 
remedy. The Congress, in which was vested all the authority 
that those articles granted to the General Government, strug¬ 
gled hopelessly and with constant failure from the treaty of 
peace with England, in 1783, until the formation of the new 
Constitution. Many suggestions were made for enlarging the 
powers of the Federal Government in regard to particular 
subjects. None were successful, and none proposed the only 
true remedy, namely, authority in the National Government 
to enforce the powers which were entrusted to it by the Arti¬ 
cles of Confederation by its own immediate and direct action 
on the people of the States. 

It is not a little remarkable that the suggestion which 
finally led to the relief, without which as a nation we must 
soon have perished, strongly supports the philosophical max¬ 
im of modern times,—that of all the agencies of civilization 
and progress of the human race, commerce is the most effi¬ 
cient. What our deranged finances, our discreditable failure 
to pay our debts, and the sufferings of our soldiers could not 
force the several States of the American Union to attempt, 
was brought about by a desire to be released from the evils 
of an unregulated and burdensome commercial intercourse, 
both with foreign nations and between the several States. 

After many resolutions by State legislatures which led 
to nothing, one was introduced by Mr. Madison into that of 
Virginia, and passed on the twenty-first day of February, 
1786, which appointed Edmund Randolph, James Madison, 
Jr., and six others, commissioners, “ to meet such commis¬ 
sioners as may be appointed by other States in the Union, 
at a time and place to be agreed, to take into consideration 


the trade of the United States ; to examine the relative situ¬ 
ation and trade of the said States ; to consider how far a 
uniform system in their commercial regulations may be nec¬ 
essary to their common interest and their permanent har¬ 
mony.” 

This committee was directed to transmit copies of the 
resolution to the several States, with a letter respecting their 
concurrence, and proposing a time and place for the meet¬ 
ing. The time agreed upon was in September, 1786, and 
the place was Annapolis. Nine States appointed delegates, 
but those of five States only attended. These were New 
York, New Jersey, Pennsylvania, Virginia, and Delaware. 
Four other States appointed delegates who, for various rea¬ 
sons, did not appear, or came too late. Of course such a 
convention as this could do little but make recommenda¬ 
tions. What it did was to suggest a convention of dele¬ 
gates from all the States, “to devise such further provisions 
as might appear to be necessary to render the Constitution 
of the Federal Government adequate to the exigencies of 
the Union.” It also proposed that whatever should be 
agreed upon by such a convention should be reported to 
Congress, and confirmed by the legislatures of all the 
States. 

This resolution and an accompanying report were pre¬ 
sented to Congress, which manifested much reluctance and a 
very unreasonable delay in acting upon it, and a want of any 
earnest approval of the plan. But the proceedings of the 
Annapolis convention had been laid before the legislatures of 
the States, where they met with a more cordial reception, 
and the action of several of them in approving the recom¬ 
mendation for a convention, and appointing delegates to 
attend it, finally overcame the hesitation of Congress. That 
body, accordingly, on the 21st of February, 1787, resolved 
that, in its opinion, “ it was expedient that on the second 
Monday in May next, a convention of delegates, who shall 


12 


have been appointed by the several States, be held at Phila¬ 
delphia, for the sole and express purpose of revising the 
Articles of Confederation, and reporting to Congress and 
the several legislatures such alterations and provisions there¬ 
in as shall, when agreed to in Congress, and confirmed 
by the States, render the Federal Constitution adequate to 
the exigencies of government and the preservation of the 
Union.” 

On the day here recommended,—May 14th,—delegates 
from Virginia and Pennsylvania met and adjourned from day 
to day until the 25th, during which period delegates from 
other States made their appearance. On that day the dele¬ 
gates of seven States, duly appointed, being present, the con¬ 
vention was organized by the election of General Washington 
as its president, at the suggestion of Franklin. On the 28th ^ 
the representation in the convention was increased to nine 
States ; and on the 29th Edmund Randolph, delegate from 
Virginia, and governor of that State, inaugurated the work of 
the convention by a speech in which he presented an outline 
of a constitution for its consideration. 

From this time on, the convention labored assiduously 
and without intermission, until, on the seventeenth day of 
September, one hundred years ago, it closed its work by pre¬ 
senting a completed instrument, which, being subsequently 
ratified by the States, became the Constitution of the United 
States of America. 

All the States except Rhode Island were finally repre¬ 
sented in the convention and took part in framing the instru¬ 
ment, a majority of the delegates of each State assenting to 
it. That State sent no delegate to the convention ; and when 
the Constitution was presented to it for ratification no conven¬ 
tion was called for that purpose until after it had gone into 
operation as the organic law of the National Government ; 
and it was two years before she accepted it and became in 
reality a State of the Union. 


13 


It is a matter for profound reflection by the philosophical 
statesman, that while the most efficient motive in bringing the 
other States into this convention was a desire to amend the ( 

situation in regard to trade among the States, and to secure ' 

a uniform system of commercial regulation, as necessary to 
the common interest and permanent harmony, the course of 
Rhode Island was mainly governed by the consideration that 
her superior advantages of location, and the possession of 
what was supposed to be the best harbor on the Atlantic 
coast, should no^ be subjected to the control of a Congress 
which was by that instrument expressly authorized “to regu¬ 
late commerce with foreign nations and among the several 
States,” and which also declared that “no preference shall be 
given by any regulation of commerce or revenue to the ports 
of one State over those of another, nor any vessel bound to 
or from one State be obliged to enter, clear, or pay duties in 
another.” 

That the spirit which actuated Rhode Island still exists, 
and is found in other States of the Union, may be inferred 
from the fact that at no time since the formation of the 
Union has there been a period when there were not to be 
found in the statute-books of some of the States acts passed 
in violation of this provision of the Constitution, imposing 
taxes and other burdens upon the free interchange of com¬ 
modities, discriminating against the productions of other 
States, and attempting to establish regulations of commerce 
which the Constitution says shall only be done by the Con¬ 
gress of the United States. 

During the session of the Supreme Court which ended 
in May last no less than four or five decisions of the highest 
importance were rendered, declaring statutes of as many dif¬ 
ferent States to be void because they were forbidden by this 
provision of the Federal Constitution. 

Perhaps the influence of commerce in bringing into har¬ 
monious action a people whose Interests are common, while 


H 


the governments by which they are controlled are independ¬ 
ent and hostile, is nowhere more strikingly illustrated than 
in the unification of the German people, which has taken 
place under the observation of most of us. Only a few 
years ago,—very few in the chronicles of a nation,—what 
is now the great central empire of Europe consisted of a 
number of separate kingdoms, principalities, and free cities. 
Some of these were so powerful as to be rated among the 
great powers of Europe. Several of them were small duke¬ 
doms, each with an autonomy and government of its own. 
Each levied taxes and raised revenue from all the merchan¬ 
dise carried through its territory, and customs officers at the 
crossing of every line which divided one of them from the 
other collected duties on all that could be found in the bag¬ 
gage or on the person of the traveler. When the railroad 
system had pervaded Europe, and persons and property 
could be carried by them for two or three hundred miles 
on a continuous track through many of these States, the 
burden became intolerable. Their governments began to 
make treaties for the rates of taxation, for freer transit of 
persons and goods, and to these treaties the States became 
parties one after the other, until the Zollvereins of North Ger¬ 
many and of South Germany included at last all of them ex¬ 
cept Austrian Germany. When this was done the unifica¬ 
tion of Germany was a foregone conclusion. The war with 
Erance only hastened what the Zollverein had demonstrated 
to be a necessity. What her poets and statesmen, and the 
intense longing of the sons of Germany for a union of all 
who spoke the language of the Fatherland, and the wisdom 
of her patriotic leaders had never been able to accomplish, 
was attained through the Zollverein, and the demands of 
commerce were more powerful in the unification of the Ger¬ 
man people than all the other influences which contributed 
to that end. 

We need not here pursue the detailed history of the 


15 


ratification and adoption of the Constitution by the States. 
The instrument itself, and the resolution of Congress sub¬ 
mitting it to the States, both provided that it should go 
into operation when adopted by nine States. Eleven of 
them accepted it in their first action in the matter. North 
Carolina delayed a short time, and Rhode Island two years 
later changed her mind ; and thus the thirteen States which 
had united in the struggle for independence became a nation 
under this form of government. 

Let us consider now the task which the convention un¬ 
dertook to perform, the difficulties which lay in its way, and 
the success which attended its efforts. In submitting to Con¬ 
gress the result of their labors, the convention accompanied 
the instrument with a letter signed under its authority by its 
president, and addressed to the President of Congress. Per¬ 
haps no public document of the times so short, yet so import¬ 
ant, is better worth consideration than this letter, dated Sep¬ 
tember 17th, 1787. From it I must beg your indulgence to 
read the following extracts :— 

“ Sir :—We now have the honor to submit to the consid¬ 
eration of the United States in Congress assembled that 
Constitution which has appeared to us the most advisable. 
The friends of our country have long seen and desired that 
the power of making war, peace, and treaties, that of levying 
money and regulating commerce, and the correspondent 
executive and judicial authorities, should be fully and effectu¬ 
ally vested in the general government of the Union ; but the 
impropriety of delegating such extensive trusts to one body 
of men” (meaning Congress) “is evident. Hence results the 
necessity of a different organization. It is obviously imprac¬ 
ticable in the federal government of these States to secure 
all the rights of independent sovereignty to each, and yet pro¬ 
vide for the interests and safety of all.” Again : 

“ In all our deliberations on this subject we kept steadily 
in view that which appears to us the greatest interest of every 


i6 


true American ,—the consolidation of onr Union, in which is 
involved our prosperity, felicity, safety, perhaps our national 
existence. This important consideration, seriously and deep¬ 
ly impressed on our minds, led each State in the convention 
to be less rigid on points of inferior magnitude than might 
otherwise be expected ; and thus the Constitution which we 
now present is the result of a spirit of amity, and of that 
natural deference and concession which the peculiarity of our 
political situation rendered indispensable.’’ 

The instrument framed under the influence of these prin¬ 
ciples is introduced by language very similar. The opening 
sentence reads : “We, the people of the United States, in or¬ 
der to form a more perfect union, establish justice, insure do¬ 
mestic tranquillity, provide for the common defense, promote 
the general welfare, and secure the blessings of liberty to our¬ 
selves and our posterity, do ordain and establish this Consti¬ 
tution for the United States of America.” 

This Constitution has been tested by the experience of a 
century of its operation, and in the light of this experience it 
may be well to consider its value. Many of its most import¬ 
ant features met with earnest and vigorous opposition. This 
opposition was shown in the convention which presented it, 
and the conventions of the States called to ratify it. In both, 
the struggle in its favor was arduous and doubtful, the oppo¬ 
sition able and active. For a very perspicuous and condensed 
statement of those objections, showing the diversity of their 
character, the importance of some and the insignificance of 
others, I refer my hearers to Section 297 of the Commentaries 
of Mr. Justice Story on the Constitution. Perhaps the wisdom 
of this great instrument cannot be better seen than by recon¬ 
sidering at this time some of the most important objections 
then made to it. One of these which caused the opposition 
of several delegates in the Constitutional Convention, and 
their refusal to sign it, was the want of a well-defined bill of 
rights. The royal charters of many of the colonies, and the 



17 


constitutions adopted by several States after the revolt, had 
such declarations, mainly assertions of personal rights and of 
propositions intended to give security to the individual in his 
right of person and property against the exercise of authority 
by governing bodies of the State. The Constitution was not 
void of such protection. It provided for the great writ of 
habeas corptis, the means by which all unlawful imprisonments 
and restraints upon personal liberty had been removed in the 
English and American courts since Magna Charta was pro¬ 
claimed ; and it declared that the privilege of that writ should 
not be suspended, unless in cases of rebellion or invasion the 
public safety should require it. The Constitution also de¬ 
clared that no ex post facto law or bill of attainder should be 
passed by Congress ; and no law impairing the obligation of 
contracts by any State. It secured the trial by jury of all 
crimes within the State where the offense was committed. It 
defined treason so as to require some overt act, which must 
be proved by two witnesses, or confessed in open court, for 
conviction. 

It can hardly be said that experience has demonstrated 
the sufficiency of these for the purpose which the advocates of 
a bill of rights had in view, because upon the recommendation 
of several of the States made in the act of ratifying the Con¬ 
stitution, or by legislatures at their first meeting subsequently, 
twelve amendments were proposed by Congress, ten of which 
were immediately ratified by the requisite number of States, 
and became part of the Constitution within two or three years 
of its adoption. 

In the presentation and ratification of these amendments, 
the advocates of a specific bill of rights, and those who were 
dissatisfied with the strong power conferred on the Federal 
Government, united ; and many statesmen who leaned to a 
strong government for the nation were willing, now that the 
Government was established, to win to its favor those who 
distrusted it by the adoption of these amendments. Hence a 


i8 

very slight examination of them shows that all of them are 
restrictions upon the power of the General Government, or 
upon the modes of exercising that power, or declarations of 
the powers remaining with the States and with the people. 
They establish certain private rights of persons and property 
which the General Government may not violate. As regards 
these last, it is not believed that any acts of intentional op¬ 
pression by the Government of the United States have called 
for serious reprehension ; but, on the contrary, history points 
us to no government in which the freedom of the citizen and 
the rights of property have been better protected and life and 
liberty more firmly secured. 

As regards the question of the relative distribution of 
the powers necessary to organized society, between the Fed¬ 
eral and State governments, more will be said hereafter. 

As soon as it became apparent to the convention that 
the new government must be a nation resting for its support 
upon the people over whom it exercised authority, and not a 
league of independent States, brought together under a com¬ 
pact on which each State should place its own construction, 
the question of the relative power of those States in the new 
government became a subject of serious difference. There 
were those in the convention who insisted that in the legisla¬ 
tive body, where the most important powers must necessarily 
reside, the States should, as in the Articles of Confederation, 
stand upon a perfect equality, each State having but one 
vote ; and this feature was finally retained in that part of the 
Constitution which vested in Congress the election of the 
President, when there should be a failure to elect by the elec¬ 
toral college in the regular mode prescribed by that instru¬ 
ment. The contest in the convention became narrowed to 
the composition of the Senate, after it had been determined 
that the legislature should consist of two distinct bqdies, sit¬ 
ting apart from each other, and voting separately. One of 
these was to be a popular body elected directly by the people 




19 


at short intervals. The other was to be a body more limited 
in numbers, with longer terms of office ; and this, with the 
manner of their appointment, was designed to give stability 
to the policy of the Government, and to be in some sense a 
restraint upon sudden impulses of popular will. 

With regard to the popular branch of the legislature, 
there did not seem to be much difficulty in establishing the 
proposition, that in some general way each State should 
be represented in it in proportion to its population, and that 
each member of the body should vote with equal effect on all 
questions before it. But when it was sought by the larger 
and more populous States, as Virginia, Pennsylvania, and 
Massachusetts, to apply this principle to the composition of 
the Senate, the resistance of the smaller States became stub¬ 
born, and they refused to yield. The feeling arising under 
the discussion of this subject came nearer causing the disrup¬ 
tion of the convention than any which agitated its delibera¬ 
tions. It was finally settled by an agreement that every 
State, however small, should have two representatives in the 
Senate of the United States, and no State should have any 
more ; and that no amendment of the Constitution should de¬ 
prive any State of its equal suffrage in the Senate without its 
consent. As the Senate has the same power in enacting laws 
as the House of Representatives, and as each State has its two 
votes in that body, it will be seen that the smaller States se¬ 
cured, when they are in a united majority, the practical 
power of defeating all legislation which was unacceptable to 
them. 

What has the experience of a century taught us on this 
question ? It is certainly true that there have been many ex¬ 
pressions of dissatisfaction with the operation of a principle 
which gives to each of the six New England States, situated 
compactly together, as much power in the Senate in making 
laws, in ratifying treaties, and in confirming or rejecting ap¬ 
pointments to office, as is given to the great State of New 


20 


York, which, both in population and wealth, exceeds all the 
New England States, and nearly if not quite equals them in 
territory. 

But if we are to form an opinion from demonstrations 
against, or attempts to modify, this feature of the Constitu¬ 
tion, or any feature which concerns exclusively the functions 
of the Senate, we shall be compelled to say that the ablest of 
our public men, and the wisdom of the nation, are in the 
main satisfied with the work of the convention on this point 
after a hundred years of observation. And it is believed that 
the existence of an important body in our system of gov¬ 
ernment, not wholly the mere representative of population, 
has exercised a wholesome conservatism on many occasions 
in our history. 

Another feature of the Constitution which met with 
earnest opposition was the vesting of the executive power in 
a single magistrate. While Hamilton would have preferred 
a monarch, with strong restriction on his authority, like that 
in England, he soon saw that even his great influence could 
not carry the convention with him. There were not a few 
members who preferred in that matter the system of a single 
body (as the Congress) in which should be reposed all the 
power of the nation, or a council, or executive committee, 
appointed by that body and responsible to it. There were 
others who preferred an executive council of several mem¬ 
bers, not owing its appointment to Congress. 

Our ancient ally,—the Erench nation,—following rapidly 
in our footsteps, abolished the monarchical form of govern¬ 
ment, and in attempting the establishment of a representative 
republic has found the governments so established up to the 
present time very unstable and of short duration. It is im¬ 
possible for an American, familiar with the principles of his 
Government, and the operation of its Constitution, to hesi¬ 
tate to attribute these failures of the Erench people very 
largely to the defects in their various constitutions in points 




21 


where they have differed from ours. Their first step, upon the 
overthrow of the monarchy, was to consolidate into one the 
three representative estates of nobles, clergy, and commons, 
which had always, when called together by the king, acted 
separately. After a little experience in governing by com¬ 
mittees, this body selected seven of their number, called the 
directors, to whom the executive powers were committed, It 
is sufficient to say of this body that, though tolerated for a 
while as an improvement on Robespierre and his Committee 
of Public Safety, it was easily overturned by Napoleon, who 
in rapid succession established an executive of three consuls, 
of which he was chief, then of consul for life in himself, and 
finally the empire, of which he was the head, and was at the 
same time the executive, the legislature, and the fountain of 
justice. It is needless to recount the history of the second 
republic and the second empire. For a third time France 
now has a republican government. This has a president, a 
senate, and a house of deputies, as our Constitution has ; 
but its president is a cipher, elected by the assembly for 
seven years. It was supposed that the length of the term 
would give stability to the government and efficiency to the 
office. It has in practice turned out that the president is but 
a public show, the puppet of the prevailing faction (it can 
hardly be called a party) in the house of deputies. His main 
function—a very disagreeable one—is to reconstruct perpetu¬ 
ally dissolving cabinets, in which he has no influence, and 
whose executive policy is controlled by the deputies on whose 
demand they are appointed, all of them acting under con¬ 
stantly impending dread of a Parisian mob. The senate of 
this system, like the house of lords of Great Britain, is with¬ 
out any actual influence on the government, and is unlike our 
Senate, the members of which represent States, and have 
both the power and the courage, when they deem it neces¬ 
sary, to resist the President or the House of Representatives, 
or both. 


22 


The present government of France has existed longer 
than any republic ever set up in that country. The senti¬ 
ment of the people is essentially republican. The strongest 
sympathies, the ardent wishes of every lover of liberty and 
of republicanism in the world, are with that gallant people; 
and commemorating, as we do to-day, the events of a hun¬ 
dred years ago,—the successful establishment of the grand¬ 
est republic the world has ever known,—our hearts, filled 
with grateful remembrance of their valuable aid, are warm 
with ardent wishes that they may share the blessings we 
enjoy. 

It was urged against our Constitution by many liberty- 
loving men, both in the convention and out of it, that it con¬ 
ferred upon the executive, a single individual, whose election 
for a term of four years was carefully removed from the 
direct vote of the people, powers dangerous to the existence 
of free government. It was said that with the appointment 
of all the officers of the Government, civil and military, the 
sword and the purse of the nation in his hands, the power to 
prevent the enactment of laws to which he did not assent,— 
unless they could be passed over his objection by a vote of 
two-thirds in each of the two legislative houses,—and the 
actual use of this power for four years without interruption, 
an ambitious man, of great personal popularity, could estab¬ 
lish his power during his own life and transmit it to his 
family as a perpetual dynasty. 

Perhaps of all objections made to important features 
of the Constitution this one had more plausibility, and was 
urged with most force. But if the century of our experience 
has demonstrated anything, it is the fallacy of this objection 
and of all the reasons urged in its support. 

The objection that the electoral college was a contriv¬ 
ance to remove the appointment of the President from the 
control of popular suffrage, was, if it had any merit, speedily 
overcome without any infraction of the Constitution by the 



23 


democratic tendencies of the people. The electors compos¬ 
ing the college, who it was supposed would each exercise an 
independent judgment in casting his vote for President, soon 
came to be elected themselves on distinct pledges made be¬ 
forehand, that they would vote for some person designated 
as a popular favorite for that office. So that at the present 
time the electors of each State, in sending to the Capital 
their votes for President, do but record the instruction of 
a majority of the citizens voting in that State. The term 
of four years for the Presidential office is not now deemed 
too long by any one, while there are many who would desire 
that it should be made longer, say seven or ten years. 

The power of appointment to office requires the con¬ 
sent of the Senate to its exercise ; and that body has as¬ 
serted its right of refusing that assent so courageously and 
so freely, that there can be no real fear of its successful use 
by the President in a manner to endanger the liberty of the 
country, unless the Senate itself shall be utterly corrupted. 
Nor can the means for such corruption be obtained from the 
public treasury unless Congress in both branches shall be¬ 
come so degenerate as to consent to such use. 

Nor have we had in this country any want of ambitious 
men, who have earnestly desired the Presidency, or, having 
it once, have longed for a continuation of it at the end of the 
lawful term. And it may be said that it is almost a custom 
when a President has filled his office for one term acceptably, 
that he is to be re-elected, if his political party continues to 
be a popular majority. Our people have also shown the usual 
hero worship of successful military chieftains, and rewarded 
them by election to the Presidency. In proof of this it is only 
necessary to mention the names of Washington, Jackson, 
Harrison, Taylor, and Grant. In some of them there has 
been no want of ambition, nor of the domineering disposi¬ 
tion, which is often engendered by the use of military power. 
Yet none of these men have had more than two terms of the 


24 


office. And though a few years ago one of the most largely 
circulated newspapers of the United States wrote in its paper 
day after day articles headed “ Caesarism/’ charging danger 
to the republic from one of its greatest benefactors and mili¬ 
tary chiefs, it excited no attention but derision, and deserved 
no other. 

There is no danger in this country from the power re¬ 
posed in the Presidential office. There is, as sad experience 
shows, far, far more danger from nihilism and assassination, 
than from ambition in our public servants. 

So far have the incumbents of the Presidency, during the 
hundred years of its history, been from grasping, or attempt¬ 
ing to grasp, powers not warranted by the Constitution, and 
so far from exercising the admitted power of that office in a 
despotic manner, a candid student of our political history dur¬ 
ing that time cannot fail to perceive that no one of the three 
great departments of the Government—the Legislative, the 
Executive, and the Judicial—has been more shorn of its just 
powers, or crippled in the exercise of them, than the Presi¬ 
dency. 

In regard to the function of appointment to office,—per¬ 
haps the most important of the executive duties,—the spirit 
of the Constitution requires that the President shall exercise 
freely his best judgment and follow its most sincere convic¬ 
tion in selecting proper men. 

It is undeniable that for many years past, by the gradual 
growth of custom, it has come to pass that in the nomination 
of officers by the President, he has so far submitted to be 
governed by the wishes and recommendations of interested 
members of the two houses of Congress, that the purpose of 
the Constitution in vesting this power in him, and the right of 
the public to hold him personally responsible for each and 
every appointment he makes, is largely defeated. In other 
words, the great principle lying at the foundation of all free 
governments, that the legislative and executive departments 



25 


shall be kept separate, is invaded by the participation of 
members of Congress in the exercise of the appointing 
power. 

History teaches us in no mistaken language how often 
customs and practices, which were originated without lawful 
warrant and opposed to the sound construction of the law, 
have come to overload and pervert it, as commentators on 
the text of Holy Scripture have established doctrines wholly 
at variance with its true spirit. 

Without considering many minor objections made to the 
Constitution during the process of its formation and adoption, 
let us proceed to that one which was the central point of con¬ 
test then, and which, transferred to the question of construing 
that instrument, has continued to divide statesmen and politi¬ 
cians to the present time. 

The convention was divided in opinion between those who 
desired a strong national government, capable of sustaining 
itself by the exercise of suitable powers, and invested by the 
Constitution with such powers, and those who, regarding the 
Articles of Confederation as a basis, proposed to strengthen 
the General Government in a very few particulars, leaving it 
chiefly dependent on the action of the States themselves for 
its support and for the enforcement of its laws. 

Let us deal tenderly with the Articles of Confederation. 
We should here, on this glorious anniversary, feel grateful for 
any instrumentality which helped us in the days of our earliest 
struggle. Very few are now found to say anything for these 
articles, yet they constituted the nominal bond which held the 
States together during the war of independence. It must be 
confessed that the sense of a common cause and a common 
danger probably did more to produce this united effort than 
any other motives. But the articles served their purpose for 
the occasion ; and though when the pressure of imminent dan¬ 
ger was removed they were soon discovered to be a rope of 
sand, let them rest in a peaceful, honorable remembrance. 


26 


Between those who favored a strong government of the 
Union and those who were willing to grant it but little power 
at the expense of the States, there were various shades of 
opinion ; and while it was the prevailing sentiment of the con¬ 
vention that “the greatest interest of every true American 
was the consolidation of the Union,” there were many who 
were unwilling to attain this object by detaching the necessary 
powers from the States and conferring them on the National 
Government. 

These divergent views had their effect, both in the con¬ 
stitutional convention and in those held for its ratification. 
Around this central point the contention raged, and it was 
only by compromises and concessions, dictated by the necessity 
of each yielding something for the common good,—so touch¬ 
ingly mentioned in the letter of the convention to Congress,— 
that the result was finally reached. The patriotism and the 
love of liberty of each party were undisputed. The anxiety 
for a government which would best reconcile the possession 
of powers essential to the State governments with those nec¬ 
essary to the existence and efficiency of the government of 
the Union, was equal, and the long struggle since the adop¬ 
tion of the Constitution on the same line of thought, in its 
construction, shows how firmly these different views were im¬ 
bedded in our political theories. 

The party which came to be called the party of State 
Rights has always dreaded that the alleged supremacy of 
the national power would overthrow the State governments, 
or control them to an extent incompatible with any useful 
existence. Their opponents have been equally confident 
that powers essential to the successful conduct of the Gen¬ 
eral Government, which either expressly or by implication 
are conferred on it by the Constitution, were denied to it 
by the principles of the State Rights party. The one be¬ 
lieved in danger to the States, from the theory which con¬ 
strued with a free and liberal rule the grants of power to the 


27 


General Government, and the other believed that such a con¬ 
struction of the Constitution was consistent with the purpose 
and spirit of that instrument, and essential to the perpetuity 
of the nation. 

If experience can teach anything on the subject of the¬ 
ories of government, the late civil war teaches unmistakably 
that those who believed the source of danger to be in the 
strong powers of the Federal Government were in error, 
and that those who believed that such powers were neces¬ 
sary to its safe conduct and continued existence were in the 
right. The attempted destruction of the Union by eleven 
States, which were part of it, and the apparent temporary 
success of the effort, was undoubtedly due to the capacity 
of the States under the Constitution for concerted action, 
by organized movements, with all the machinery ready at 
hand to raise armies and establish a central government. 
And the ultimate failure of the attempt is to be attributed 
with equal clearness to the exercise of those powers of the 
General Government, under the Constitution, which were 
denied to it by extreme advocates of State Rights. And 
that this might no longer be matter of dispute, three new 
amendments to the Constitution were adopted at the close 
of that struggle, which, while keeping in view the principles 
of our complex form of State and Federal government, and 
seeking to disturb the distribution of powers among them as 
little as was consistent with the wisdom acquired by a sor¬ 
rowful experience, these amendments confer additional pow¬ 
ers on the government of the Union, and place additional 
restraints upon those of the States. May it be long before 
such an awful lesson is again needed to decide upon disputed 
questions of constitutional law. 

It is not out of place to remark that while the pendulum 
of public opinion has swung with much force away from the 
extreme point of State Rights doctrine, there may be danger 
of its reaching an extreme point on the other side. In my 


28 

opinion, the just and equal observance of the rights of the 
States, and of the General Government, as defined by the 
present Constitution, is as necessary to the permanent pros 
perity of our country, and to its existence for another cen¬ 
tury, as it has been for the one whose close we are now 
celebrating. 

Having considered the objections originally made to this 
great work, in the light of its operation for a century, what 
shall we say of it in regard to those great features which 
were more generally acceptable ? The doctrine of Montes¬ 
quieu, then in the height of his fame, that the powers essen¬ 
tial to all governments should be distributed among three 
separate bodies of magistracy,—namely, legislative, execu¬ 
tive, and judicial,—was, as Madison affirms in number XLVII. 
of the Federalist, recognized by the convention as the foun¬ 
dation of its labors. The apparent departure from that prin¬ 
ciple in making the Senate a participant in the exercise of 
the appointing power, and the treaty-making power, works 
well, because the initiative remains with the Executive. The 
power of that body to try impeachments of public officers for 
high crimes and misdemeanors,—a function essentially judi¬ 
cial, while it has not produced any substantial injury,—has, 
perhaps, operated as a safety-valve in cases of great popular 
excitement. As an efficient remedy, it must be conceded to 
be a failure. 

But the harmony and success with which the three great 
subdivisions of the organized government of the Constitution 
have co-operated in the growth, prosperity, and happiness of 
this great people, constitute the strongest argument in favor 
of the organic law, which governs them all. It is the first 
successful attempt, in the history of the world, to lay the 
deep and broad foundations of a government for millions of 
people and an unlimited territory, in a single written instru¬ 
ment, framed and adopted in one great national effort. 

This instrument comes nearer than any of political origin 


29 


to Rousseau’s idea of a society founded on a social contract. 
In its formation, States and individuals, in the possession of 
equal rights,—the rights of human nature common to all,— 
met together and deliberately agreed to give up certain of 
those rights to government for the better security of others ; 
and that there might be no mistake about this agreement it 
was reduced to writing, with all the solemnities which give 
sanction to the pledges of mankind. 

Other nations speak of their constitutions, which are the 
growth of centuries of government, and the maxims of ex¬ 
perience, and the traditions of ages ; many of them deserve 
the veneration which they receive. But a constitution, in the 
American sense of the word, as accepted in all the States of 
North and South America, means an instrument in writing, 
defining the powers of government, and distributing those 
powers among different bodies of magistrates for their more 
judicious exercise. The Constitution of the United States not 
only did this as regards a national government, but it estab¬ 
lished a federation of many States by the same instrument, in 
which the usual fatal defects in such unions have been cor¬ 
rected, with such felicity that during the hundred years of its 
existence the union of the States has grown stronger, and 
has received within that Union other States exceeding in 
number those of the original federation. 

It is not only the first important written constitution 
found in history, but it is the first one which contained the 
principles necessary to the successful confederation of nu¬ 
merous powerful States. I do not forget, nor do I mean to 
disparage, our sister, the federal republic of Switzerland. 
But her continuance as an independent power in Europe is 
so largely due to her compact territory, her inaccessible 
mountains, her knowledge of the necessity of union to safety, 
and the policy of her pow^erful neighbors, which demands of 
each other the recognition of her rights, that she hardly forms 
an exception. But Switzerland stands to-day—may she ever 


30 


stand—as the oldest witness to the capacity of a republican 
federation of States for sound government, for the security 
of freedom, and resistance to disintegrating tendencies. But 
when we look to the results of confederation in the Olympic 
Council, and the Achaian League of ancient history, and in 
modern times to the States of Holland and the old German 
Empire, we must admit that the United States presents the 
most remarkable, if not the only successful, happy, and pros¬ 
perous, federated government of the v/orld. 

Let us consider for a moment the evidence of this. 
When the Constitution was finally ratified, and Rhode Island 
also accepted it, the Government was composed of thirteen 
States. It now numbers thirty-eight. The inhabited area of 
those States was found between the Allegheny Mountains and 
the Atlantic Ocean, a region which, when we now look over 
a map of the United States, seems to be but the eastern bor¬ 
der of the great republic. Its area now includes all the terri¬ 
tory between the Atlantic and Pacific Oceans,—a distance of 
over three thousand miles east and west,—and between the 
St. Lawrence and the great lakes on the north and the Gulf 
and States of Mexico on the south. Besides these thirty- 
eight States, the remainder of this immense region is divided 
into eight Territories, with an organized government in each, 
several of which are ready to be admitted into the Union as 
States, under a provision of the Constitution on that subject, 
and in accordance with the settled policy of the nation. 

The thirteen States which originally organized this Gov¬ 
ernment had a population believed to be, in round numbers, 
three millions, many of whom were slaves. To-day it seems 
probable that sixty millions are embraced in the United 
States, in which there breathes no soul who owns any man 
master. 

I have already suggested the impoverished condition of 
the country at the close of the Revolutionary war. To-day I 
do not hesitate to make the assertion, that if you count only 




31 


that which is real wealth, and not accumulated capital in the 
shape of evidences of debt,—which is but a burden upon 
such property,—I mean, if you count lands and houses and 
furniture, and horses and cattle and jewels,—all that is tangi¬ 
ble and contributes to the comfort and pleasure of life,—the 
United States to-day is the wealthiest country upon the face 
of the globe, and is the only great government which is so 
rapidly paying off its national debt that it is begging its cred¬ 
itors to accept their money not yet due, with a reasonable re¬ 
bate for interest. 

Under the Government established by this Constitution 
we have, in the century which we are now overlooking, had 
three important wars, such as are always accompanied by 
hazardous shocks to all governments. In the first of these 
we encountered the British Empire, the most powerful na¬ 
tion then on the globe,—a nation which had successfully 
resisted Napoleon, with all the power of Europe at his back. 
If we did not attain all we fought for in that contest, we dis¬ 
played an energy and courage which commanded for us an 
honorable stand among the nations of the earth. 

In the second,—the war with Mexico,—while our reputa¬ 
tion as a warlike people suffered no diminution, we made 
large accessions of valuable territory, out of which States 
have been since made members of the Union. 

The last war,—the recent civil war,—in the number of 
men engaged in it, in the capacity of the weapons and instru¬ 
ments of destruction brought into operation, and in the im¬ 
portance of the result to humanity at large, must be esteemed 
the greatest war that the history of the world presents. It 
was brought about by the attempt of eleven of the States to 
destroy the Union. This was resisted by the Government of 
that Union under the powers granted to it by the Constitution. 
Its results were the emancipation of three millions of slaves, 
the suppression of the attempt to dissever the Union, the re¬ 
sumption of an accelerated march in the growth, prosperity, 


32 


and happiness of this country. It also taught the lesson 
of the indestructibility of the Union, of the wisdom of the 
principles on which it is founded, and it astonished the 
nations of the world, and inspired them with a respect which' 
they had never before entertained for our country. 

I venture to hope that with the earnest gaze of the 
wisest and ablest minds of the age turned with profound in¬ 
terest to the experiment of the federative system, under our 
American Constitution, it may suggest something to relieve 
the nations of Europe from burdens so heavy that if not soon 
removed they must crush the social fabric. Those great na¬ 
tions cannot go on forever adding millions upon millions to 
their public debts, mainly for the support of permanent stand¬ 
ing armies, while those armies make such heavy drafts upon 
the able-bodied men whose productive industry is necessary 
to the support of the people and of the government. 

I need not dwell on this unpleasant subject further than 
to say that these standing armies are rendered necessary by 
the perpetual dread of war with neighboring nations. 

In the principles of our Constitution by which the auton¬ 
omy and domestic government of each State are preserved, 
while the supremacy of the General Government at once 
forbids wars between the States, and enables it to enforce 
peace among them, we may discern the elements of political 
forces sufficient for the rescue of European civilization from 
this great disaster. 

Do I claim for the Constitution, whose creation we cele¬ 
brate to-day, the sole merit of the wonderful epitome which I 
have presented to you of the progress of this country to 
greatness, to prosperity, to happiness and honor? Nay, I do 
not ; though language used by men of powerful intellect and 
great knowledge of history might be my justification if I did. 

Mr. Bancroft, the venerable historian, who has devoted 
a long and laborious life to a history of his country, that is a 
monument to his genius and his learning, says of the closing 


33 


hours of the convention : “ The members were awe-struck at 
the result of their councils ; the Constitution was a nobler 
work than any one of them believed possible to devise.” 
And he prefaces the volume of his invaluable history of the 
formation of the Constitution with a sentiment of Mr. Glad¬ 
stone, the greatest living statesman of England. He says : 
“As the British constitution is the most subtile organism 
which has proceeded from progressive history, so the Ameri¬ 
can Constitution is the most wonderful work ever struck off 
at a given time by the brain and purpose of man.” 

And while I heartily endorse this, and feel it impossible 
to find language in which to express my admiration and my 
love for the Constitution of the United States, and my pro¬ 
found belief that the wisdom of man, unaided by inspiration, 
has produced no writing so valuable to humanity, I should 
fail of a most important duty if I did not say on this public 
occasion, that no amount of wisdom in a constitution can pro¬ 
duce wise government unless there is a suitable response in 
the spirit of the people. 

The Anglo-Saxon race, from whom we inherit so much 
that is valuable in our character, as well as our institutions, 
has been remarkable in all its history for a love of law 
and order. While other peoples, equally cultivated, have 
paid their devotion to the man in power, as representative of 
the law which he enforces, the English people, and we 
their descendants, have venerated the law itself, looking past 
its administrators, and giving our allegiance and our obedi¬ 
ence to the principles which govern organized society. It has 
been said that a dozen Englishmen or Americans, thrown on 
an uninhabited island, would at once proceed to adopt a code 
of laws for their government, and elect the officers who were 
to enforce them. And certainly this proposition is borne out 
by the early history of our emigrants to California, where every 
mining camp organized into a political body, and made laws 
for its own government, which were so good that Congress 


0 -^ 


34 


adopted them until they should be repealed or modified by 
statute. 

I but repeat the language of the Supreme Court of the 
United States when I say that in this country the law is su¬ 
preme. No man is so high as to be above the law. No offi¬ 
cer of the Government may disregard it with impunity. To 
this inborn and native regard for law, as a governing power, 
we are indebted largely for the wonderful success and pros¬ 
perity of our people, for the security of our rights ; and when 
the highest law to which we pay this homage is the Constitu¬ 
tion of the United States, the history of the world has pre¬ 
sented no such wonder of a prosperous, happy civil govern¬ 
ment. 

Let me urge upon my fellow-countrymen, and especially 
upon the rising generation of them, to examine with careful 
scrutiny all new theories of government and of social life, and 
if they do not rest upon a foundation of veneration and re¬ 
spect for law as the bond of social existence, let them be 
distrusted as inimical to human happiness. 

And now let me close this address with a quotation from 
one of the ablest jurists and most profound commentators 
upon our laws,—Chancellor Kent. He said, fifty years ago : 
“The Government of the United States was created by the 
free voice and joint will of the people of America for their 
common defense and general welfare. Its powers apply to 
those great interests which relate to this country in its national 
capacity, and which depend for their stability and protection 
on the consolidation of the Union. It is clothed with the 
principal attributes of sovereignty, and it is justly deemed the 
guardian of -our best rights, the source of our highest civil 
and political duties, and the sure means of our national 
greatness.” 


AN ADDRESS 


DELIVERED BEFORE 


The Alumni of the Law Department of the University 
OF Michigan, 


ON 


THE SUPREME COURT OF THE UNITED STATES, 


AT THE 


Semi-Centennial Celebration of the University, 


JUNE 2gth, 1887. 



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Ladies and Gentlemen : 

In selecting a topic for this address, a thing not easily 
done at any time, I have found myself a little more embar¬ 
rassed than I should have been if I had been requested to ad¬ 
dress the graduating law class of this term of the University. 
I have had the pleasure more than once, and it is always such 
to me, to address young men who had just received their 
diplomas from the Law Departments of different colleges. 

I have, however, selected a subject in which I trust the 
young gentlemen present, who have just graduated, will feel 
an interest as great as their seniors in the profession of the 
law. It is one which ought to engage the thoughts and re¬ 
flections of every member of the legal profession in the 
United States, and it has been chosen because my own 
familiarity with the topic will, I trust, enable me to say some¬ 
thing valuable in regard to the highest judicature in this 
country. My subject is “The Supreme Court of the United 
States.” 

This court may be regarded in many respects, to con¬ 
sider each one of which would consume more time than is 
permissible upon an occasion like this. There are, and 
might be discussed separately, its jurisdiction, the personnel 
of its organization, the history of the men who have occupied 
places upon its bench, a review of the great cases decided by 
it, and a general outlook upon the principal events in its 
career. 

Upon the present occasion I propose to consider the his¬ 
tory of the court with relation to its effect upon the course of 
the General Government, and in doing this I can best illustrate 
my meaning and better interest my listeners by a reference 
to some of its decisions upon great constitutional questions 

(37) 


38 


that have influenced and in some instances controlled the 
course of the other two great departments of the Government. 

The framers of the Constitution of the United States 
were governed by the principle that the powers which belong 
to all governments could be most safely and satisfactorily ex¬ 
ercised by their division among three separate branches or 
departments, to one or the other of which, in the main, they 
were all distributed. These departments are called the ex¬ 
ecutive, the legislative, and the judicial. The line, however, 
is not perfect which divides the powers exercised by each of 
them from those of the others. The President, or the Execu¬ 
tive, takes part in the making of laws by his signature to 
them, or by his refusal to sign them, in which event a two- 
thirds vote of the legislature is required to make the act a 
law. The Senate partakes in the executive function by its 
power to confirm or reject treaties made by the President, as 
well as his nominations to office ; and the power to try im¬ 
peachments, which is essentially judicial in its nature, is also 
given to that body. Yet, notwithstanding these departures 
from the general principle, it remains true that the great 
executive functions of the Government in this country are 
given to the President, the legislative to Congress, and, more 
rigidly than in either of the other cases, the judicial to the 
courts of the United States. 

The relations of these departments to each other cannot 
be better stated, perhaps, than in the language of Mr. Justice 
Wayne of the Supreme Court of the United States, in the 
case of Dodge vs. Woolsey, i8 How., 347 :— 

‘‘The departments of the Government,” he says, “are 
legislative, executive, and judicial. They are co-ordinate in 
degree to the extent of the powers delegated to each of 
them. Each, in the exercise of its power, is independent of 
the others, but all, rightfully done by either, is binding upon 
the others. The Constitution is supreme over all of them, 
because the people who ratified it have made it so.” 


39 


Of the judicial department of the Government the Su¬ 
preme Court is the head and representative, and to it must 
come for final decision all the great legal questions which 
may arise under the Constitution, the laws, or the treaties 
of the United States. It is to this court, and to some de¬ 
tached portions of its history of nearly one hundred years, 
that I propose to call your attention. 

It has been said of this court, that the Constitution cre¬ 
ated it for the purpose of construing that instrument. The 
popular idea to-day is that such is the primary and most 
important object of its existence. To some extent this may 
be so, but it is undoubtedly true that the judicial function of 
administering justice as a court of law between certain 
classes of litigants, and upon certain subjects of dispute, is 
the duty in which it is principally engaged. In the adminis¬ 
tration of this duty questions must occasionally arise in re¬ 
gard to the validity of the laws enacted by the Congress of 
the United States, or of a State, or of an act of th^ execu¬ 
tive department of the Government, as to whether such law 
or action is in conformity to or in violation of the Constitution 
of the United States, and the court must in’such cases give 
judicial construction to that instrument. Such construction, 
being by the highest law tribunal of the country, must be re¬ 
ceived as the law, not only of that particular case, but the 
rule of action for all inferior judicial tribunals in all cases of 
a like character. 

As it is also desirable that there should be uniformity of 
construction upon all important questions arising under the 
Constitution, the decisions of no other body in the organ¬ 
ization of the Goyernment are likely to command the same 
influence, in producing that result, as those of the Supreme 
Court. And as the same questions may time after time be 
brought before it, and will in general be decided in the same 
way, its decisions constitute a body of precedents which nat¬ 
urally come to command the respect of all other tribunals. 


40 


and to be generally received as the true construction of the 
organic law of the nation upon the points thus determined. 

It is not strictly true that these decisions are in all cases 
binding upon the executive and the legislative branches of the 
Government. In certain classes of cases every man who takes 
an oath to support the Constitution of the United States must 
find himself in the presence of embarrassing questions, in re¬ 
gard to which his action must be governed by his own con¬ 
viction of the duties which it imposes upon him. Still it may 
be said that in the history of the Government, during a 
period of nearly a century since its organization, it has been 
exceedingly rare that a principle of constitutional law has 
been distinctly laid down by the Supreme Court which has not 
come to be recognized as the true sense of that instrument. 

The act of Congress under which the organization of 
this court took place was approved September 24th, 1789. 
It provided for the appointment of a Chief Justice, and five 
Associate Justices, which should constitute the court. The 
first judges appointed under this law were John Jay, of New 
York, Chief Justice ; and John Rutledge, of South Carolina; 
James Wilson, of Pennsylvania ; William Cushing, of Massa¬ 
chusetts ; Robert Harrison, of Maryland ; and John Blair, of 
Virginia, Associate Justices. 

Jay served as Chief Justice from 1789 to 1795, when he 
resigned. During this period, however, he was Minister of 
the United States to England. And, as showing that this 
high judicial office was not in that early time considered 
incompatible with the discharge of the functions of other 
offices, it may be mentioned that when Marshall was ap¬ 
pointed and confirmed as Chief Justice in 1801, he was Sec¬ 
retary of State in the Cabinet of President John Adams, and 
though commissioned and taking his seat upon the bench he 
continued to discharge the duties of the secretaryship until 
the end of that administration, a period of two or three 
months. 



41 


On the resignation of Jay, in 1795, John Rutledge was 
appointed Chief Justice, received his commission and took 
his seat in court, but, not being confirmed by the Senate, 
Oliver Ellsworth was appointed in 1796. He served as Chief 
Justice until December, 1799, when he resigned. 

John Marshall was appointed to the position of Chief 
Justice in 1801, and served a period of thirty-four years, 
until he died in 1835. After his death Roger B. Taney was 
appointed to the vacant place in 1836, and held it until he 
died in 1864, after a service of twenty-eight years. With the 
additional statement that Chief Justice Chase succeeded him, 
and presided for nine years, when he died, and was succeeded 
by the present Chief Justice Waite, I am compelled to close 
what I have to say with regard to the personal organization 
of the court. It will be noted that for a period of sixty-two 
years continuously the court was presided over by two Chief 
Justices, which may be supposed to have aided very much 
in the stability and uniformity of its course of decisions. 

Very early in the history of the court a question came 
before it of much importance, which was fully considered 
at the time, and in which great public interest was felt. Its 
decision caused the adoption of an amendment to the Con¬ 
stitution of the United States, the Eleventh. It arose in the 
case of Chisholm vs. The State of Geoi^gia, 2 Dallas, 479. 

This was an action of assumpsit, instituted in the Su¬ 
preme Court of the United States, under its original ju¬ 
risdiction, at the August term, 1792, and was decided at 
the February term, 1793. The State of Georgia, which 
was supposed to be brought before the court by the service 
of the writ upon its Governor and its Attorney-General, re¬ 
fused to make any general appearance, but presented by its 
attorneys, Ingersoll and Dallas, a written remonstrance and 
protestation against the exercise of jurisdiction in this case. 
The question thus presented was, whether a common-law 
action of asstimpsit could be sustained against a State in 


42 

the Supreme Court of the United States by a citizen of 
another State. 

The action was commenced under the second section of 
the third Article of the Constitution, providing that the judi¬ 
cial power of the United States shall among other matters 
extend to controversies between a State and citizens of an¬ 
other State, and that the Supreme Court shall have original 
jurisdiction in all cases in which a State shall be a party. 
Chisholm, being a citizen of North Carolina, began his ac¬ 
tion under this provision against the State of Georgia in the 
Supreme Court of the United States. The judges delivered 
separate opinions. 

Iredell of North Carolina, who had succeeded Harrison 
of Maryland as a member of the court, delivered a very learn¬ 
ed one, the main object of which seemed to be to show that, 
inasmuch as States had never been held liable to action at 
common law, the State in this case could not be sued in an 
action of assumpsit, however it might be in regard to other 
matters of litigation. The other judges, on the contrary, all 
agreed in the proposition, that the provision of the Consti¬ 
tution, just recited, made a State liable to be sued for any 
legal cause of action, in law or in equity, in the Supreme 
Court of the United States by a citizen or citizens of another 
State. 

This proposition, which as Mr. Randolph, the Attorney- 
General of the United States, who argued the case for Chis¬ 
holm, said was so unpopular that he had been warned against 
the consequences of his pressing it upon the court, was re¬ 
ceived with very great disfavor. The result was that Con¬ 
gress immediately proposed the Eleventh Amendment to the 
Constitution, which was ratified by the States as soon as they 
had an opportunity to vote upon it. That amendment is as 
follows :— 

^ “The judicial power of the United States shall not 
be construed to extend to any suit in law or equity, com- 



43 


menced or prosecuted against one of the United States by 
citizens of another State, or by citizens or subjects of any ^ 
foreign State.” 

It is a little remarkable that, notwithstanding the una¬ 
nimity of the court upon this question, a different opinion 
had been expressed by Mr. Hamilton in number LXXXI. of 
the Federalist. In replying to the objection that this provi¬ 
sion of the Constitution subjected a State to be sued for its 
debts or obligations, he says :— 

“It has been suggested that an assignment of the public 
securities of one State to the citizens of another would en¬ 
able them to prosecute that State in the Federal courts for 
the amount of those securities, a sug|^estion which the follow¬ 
ing considerations prove to be without foundation.” 

He then goes on to show that it is inherent in the nature 
of sovereignty not to be amenable to suit without its consent, 
and that this is the general sense and the general practice of 
mankind; that this provision of the Constitution can only be 
construed to authorize a State to bring a suit against citizens 
of other States in the Federal courts, and does not authorize 
a suit against the State by the citizen of another State. 

Mr. Madison and Mr. Marshall, one or both of them, 
made the same suggestion in the convention of the State of 
Virginia, called to pass upon the adoption of the Constitu¬ 
tion. 

The amendment just quoted was supposed to have set¬ 
tled the question of the suability of a State upon its obliga¬ 
tions or for its debts in any other mode than that to which 
the State should give its express consent, and that the courts 
of the United States had no jurisdiction to entertain such 
suits. But curiously enough, after the lapse of ninety years, 
the suggestion of Hamilton in regard to the assignment by 
creditors of a State, who could not themselves sue in the 
Federal courts, to parties who could sue the State in those 
courts, has been acted upon. 


44 


In the cases of New Hampshire vs. Louisiana, and New 
y York vs. Louisiana, reported in io8 U. S., 76, this precise 
question was brought up. Although the jurisdiction to sue 
a State in the courts of the United States by the citizens 
of another State, or by citizens or subjects of any foreign 
State, was abolished by the Eleventh Amendment, there yet 
remained the right of one State to sue another. Certain 
creditors, therefore, of the State of Louisiana, who could not 
sue that State themselves, transferred by assignment the evi¬ 
dence of their indebtedness, some to the State of New 
Hampshire and others to the State of New York, and these 
States brought suits in the Supreme Court of the United 
States against the State of Louisiana upon those obligations. 

The court, after a very elaborate argument, decided that 
these actions could not be sustained; that “the evident pur¬ 
pose of the amendment, so promptly proposed and adopted, 
was to prohibit all suits against a State by or for citizens of 
other States, or aliens, without the consent of the State to be 
sued,” and that “one State cannot create a controversy with 
another State, within the meaning of that term as used in the 
judicial clauses of the Constitution, by assuming the prosecu¬ 
tion of debts owing by the other State to its citizen.” 

At the same term there was presented to the court in its 
appellate jurisdiction an effort to force the State of Louisiana 
to pay some of the same kind of debts out of the money in 
its treasury. This was a proceeding in mandamus against 
the Treasurer of the State to compel him to pay them out 
of the funds in his hands as such officer, and by a bill in 
chancery to enjoin the payment of the same money to other 
creditors. 

Both of these were held to be forbidden by the Consti¬ 
tution, because they were substantially suits against the State. 
Louisiana vs. Jumel, 107 U. S., 711. 

And though there have been some differences in court 
upon the question of how far an action against an officer of 



45 


a State may be held to be a suit against the State, so as to 
come within the principle of the Eleventh Amendment to the 
Constitution, excluding the jurisdiction of the Federal courts, 
yet the main proposition has been steadily sustained, that 
were it essentially a suit against the State the Federal courts 
cannot entertain it. In view of the many millions of dollars 
of indebtedness of the States, which they refuse to pay, the 
importance of the original decision which evoked the consti¬ 
tutional amendment forbidding the States to be sued in the 
Federal courts is readily to be perceived. 

Another judgment of the Supreme Court a little later, 
rendered at the February term, 1803, which has been very 
far-reaching in its influence upon the other departments and 
other officers of the Government, was made in the case of 
Marbtiry vs. Madison, i Cranch, 137. 

I have already said that Marshall, although Chief Justice 
of the Supreme Court, had continued to act as Secretary of 
State until the close of John Adams’ administration, when the 
latter was succeeded by Jefferson. The commissions of cer¬ 
tain officers, signed and sealed by the President, and ready 
for delivery, were left in the office of the Secretary of State, 
which the succeeding Secretary, Mr. Madison, refused to de¬ 
liver to the parties thus commissioned. The result of this 
was that Mr. Marbury, who was one of these parties, com¬ 
missioned as a justice of the peace of the District of Colum¬ 
bia, and whose appointment had been approved by the Sen¬ 
ate, having demanded the delivery of his commission, applied 
to the Supreme Court for a writ of jnaiida^nus to compel its 
delivery. 

The opinion in the case was delivered by Marshall him¬ 
self, as Chief Justice, and was concurred in by the whole 
court. It is very lengthy, and an exhaustive discussion of the 
power of a court of law to compel officers by the writ of 
ma7ida7mis to discharge duties which it is clear they are 
bound to perform, and in regard to which they have no 


46 


discretion. The court decides that since the commission was 
signed and sealed by the President of the United States, and 
the appointment approved by the Senate, there was no au¬ 
thority in the President or Secretary of State to withhold it ; 
that the duty to deliver it to the person entitled to it was 
clear and unquestionable, and that this duty could be en¬ 
forced by any court having jurisdiction of the case. 

The court, however, came to the conclusion that this 
was not a case in which it had any original jurisdiction, and 
it therefore could not issue the writ. But it was also held 
that such jurisdiction was in the local courts of the District of 
Columbia, who had authority to issue the writ to any officer 
within the District who refused to perform a duty merely 
ministerial in its character, in regard to which he could exer¬ 
cise no judgment, and that this was of that class of cases. 

The immense importance of this decision, though in 
some respects obiter, since the court declared in the end that 
it had no jurisdiction of the case, may be appreciated when it 
is understood that the principles declared, which have never 
since been controverted, subjected the ministerial and execu¬ 
tive officers of the Government, all over the country, to the 
control of the courts, in regard to the execution of a large 
part of their duties. Its application to the very highest offi¬ 
cers of the Government, except perhaps the President him¬ 
self, has been illustrated in numerous cases in the courts of 
the United States, and in the reports of the Supreme Court. 
Perhaps one of the latest and most instructive of these is 
the case of U^iited States vs. SeJmrz, 102 U. S., 378. 

It appears that Mr. Schurz, as Secretary of the Interior, 
after a patent for lands had been granted, signed by the 
President of the United States, and recorded in the Register 
of Patents, issued an order to the Commissioner of the Gen¬ 
eral Land Office that he should withhold the instrument and 
not deliver it to the person named in it. The land depart¬ 
ment of the Government had been in the habit, after patents 



47 


for lands were issued, and even after they had been deliv¬ 
ered, of recalling them at their own option and revoking 
them. In many instances, even after they had been sent to 
the local land office for delivery to the proper parties, they 
had been recalled while there, and thus put the owners of 
them to great inconvenience and trouble. 

An action for a writ of mandaimis to compel Mr. Schurz 
to deliver this patent was brought in the name of the United 
States on relation of the party applying for the writ, who was 
the grantee of the land. The Supreme Court held that after 
the patent had been signed, sealed, and recorded there no 
longer remained in the officers of the Government any power 
over the title, or any right to retain and refuse to deliver the 
patent. They therefore authorized the issuing of a writ by 
the Supreme Court of the District. 

I'his decision was founded upon Marbitry vs. Madison 
and upon its reasoning, as many other decisions have been, 
and the power of the courts in the class of cases described in 
that opinion, namely, those in which a duty is imposed by law 
upon an officer of the Government to do a specific act, in 
regard to which he has no discretion, and which act is simply 
and purely ministerial in its nature, has been well established, 
and is one of the most useful principles of Federal jurispru¬ 
dence. 

During the long Chief Justiceship of Marshall, many 
cases of public and political importance, having a large influ¬ 
ence over the course of the Government and very materially 
guiding the action of the executive and legislative depart¬ 
ments, came up for consideration. I must only select such 
of these as I consider most important, and which can be 
touched upon within the limits of this discourse. 

The next of these to which I shall call your attention is 
McQdloch vs. Maryla 7 id, decided in 1819, and reported in 
4 Wheat, 316. It involved the question of the power of the 
General Government to create a national bank, with branches 


48 


in the States, capable of issuing circulating notes. Such a 
bank had been created under Hamilton’s administration of 
the treasury, and its charter expired about the commence¬ 
ment of the war of 1812. A recharter was refused under 
the influence of the strict construction rule of Virginia politics 
in regard to the power of Congress to create such a bank. 
Mr. Madison himself, who was then President, was opposed 
to it, it is said, upon that ground. But the disastrous condi¬ 
tion of the public credit, and the general financial ruin which 
followed the close of that war, induced Congress to charter a 
new bank. This was done in 1816, and received the assent 
of Mr. Madison. 

The introduction into the States of this institution, by 
branches of the principal bank, especially with the power of 
issuing circulating notes, was unpopular in many of them— 
and attempts were made to resist their business operations. 
Among these the State of Maryland assessed a tax upon the 
circulating notes of the bank, which in effect was intended to 
drive them from the State. In the attempt to enforce this 
law, the Court of Appeals of Maryland affirmed the validity 
of the statute of that State establishing the tax. McCulloch, 
the party sued, thereupon brought the case by a writ of error 
to the Supreme Court of the United States. 

The opinion takes a very wide range with regard to the 
nature and power of the Federal Government, and the prin¬ 
ciples of construction of the Constitution. It is one of the 
ablest of the opinions delivered by Chief Justice Marshall, and 
has often been referred to and followed in subsequent cases. 

The court held that Congress had power to incorporate 
such a bank ; that although there was no express grant of 
such power, or of authority to create any corporation, yet as 
one of the appropriate means of exercising the powers of the 
Government in regard to the collection and disbursement of 
its revenues and the transfer of them from one point to an¬ 
other, the institution of this bank, with the right to establish 




49 


its branches and offices of discount and deposit within a 
State, and to issue circulating notes, was an appropriate 
means of carrying into effect the powers expressly given by 
the Constitution to the Government of the Union. 

It therefore held that no State had any authority by 
taxation or otherwise to impede the necessary and proper ac¬ 
tion of this bank, an instrumentality which Congress deemed 
necessary in carrying on the general operations of the Gov¬ 
ernment of the United States connected with the Treasury. 
“If,” said the court, “the right of the State to tax the means 
employed by the General Government be conceded, the dec¬ 
laration that the Constitution and laws made in pursuance 
thereof, shall be the supreme law of the land, is empty and 
unmeaning declamation.” 

The number of the Justices at this time had been in¬ 
creased to seven, and their opinion was unanimous. 

Just prior to the expiration of the charter of this bank 
in 1836, the question of its renewal became one of absorbing 
public interest. The then President of the United States, 
General Jackson, brought all his influence and popularity to 
bear to prevent a renewal of its charter, and the question 
entered into the partisan politics of the day more largely 
than any other, and to some extent continued to do so until 
the late war. The Congress of 1836 passed the bill for the 
recharter of the bank, but President Jackson vetoed it, largely 
on the ground that it was unconstitutional. It may be said, 
however, that the prevailing sentiment of the country, and 
especially of its leading statesmen, has been in the main 
favorable to the constitutionality of the United States Bank, 
and no decision of the Supreme Court, or of any odier court 
of the United States, has ever impugned or denied the cor¬ 
rectness of the principle upon which McCulloch vs. Maryland 
was decided. 

It is a matter of interest, which I cannot forbear to men¬ 
tion here, that the present national bank system, which in 


50 



my judgment, and in that of many thinking men, statesmen, 
and financiers, is the best that the world has ever seen, origi¬ 
nated during the midst of the civil war with the Secretary of 
the Treasury who afterwards came to Marshall’s place, as 
Chief Justice of the Supreme Court of the United States. 

It is unnecessary for me to point out to this intelligent 
audience the great influence which that decision of the Su¬ 
preme Court has exercised over the material and financial 
prosperity of this country. Had the decision been, that there 
existed in this Government no power to create a national cur¬ 
rency, or to provide for a national banking system, the disas¬ 
trous effects upon the business prosperity of the people can 
hardly be imagined. Those who are old enough to have gone 
through the State bank and wild-cat systems of paper money 
prevalent a few years since in this country, can bear feeling 
testimony to the value of a so-called national bank system. 

Another decision of the court, made in the same year, 
and perhaps at the same term, is that of The Trustees of Dart¬ 
mouth College Woodward, 4 Wheat., 518. 

It may well be doubted whether any decision ever deliv¬ 
ered by any court has had such a pervading operation and 
influence in controlling legislation as this. The legislation, 
however, so controlled has been that of the States of the 
Union. The decision is founded upon that clause of the 
Constitution which declares “ That no State shall make any 
law impairing the obligation of contracts.” Article I., Sec¬ 
tion 10. 

Dartmouth College existed as a corporation under a 
charter granted by the British Crown to its trustees in New 
Hampshire, in the year 1769. This charter conferred upon 
them the entire governing power of the college, and among 
other powers that of filling up all vacancies occurring in their 
own body, and of removing and appointing tutors. It also 
declared that the number of trustees should forever consist 
of twelve, and no more. 





51 


After the Revolution, the Legislature of New Hampshire 
passed a law to amend the charter, to improve and enlarge 
the corporation. It increased the number of trustees to 
twenty-one, gave the appointment of the additional members 
to the Executive of the State, and created a board of over¬ 
seers to consist of twenty-five persons, of whom twenty-one 
were also to be appointed by the Executive of New Hamp¬ 
shire. These overseers had power to inspect and control the 
most important acts of the trustees. 

The Supreme Court, reversing the decision of the Supe¬ 
rior Court of New Hampshire, held that the original charter 
constituted a contract between the Crown, in whom the 
power was then vested, and the trustees of the college, which 
was impaired by the act of the legislature above referred to. 
The opinion, to which there was but one dissent, establishes 
the doctrine that the act of a government, whether it be by a 
charter of the legislature or of the Crown, which creates a 
corporation, is a contract between the State and the corpor¬ 
ation, and that all the essential franchises, powers, and ben¬ 
efits conferred upon the corporation by the charter become, 
when accepted by it, contracts, within the meaning of the 
clause of the Constitution referred to. 

I cannot here go into the great argument by which this 
proposition was supported, nor enter into a minute statement 
of the class of subjects which by the rulings of this case be¬ 
came contracts protected by the Constitution. The opinion 
has been of late years much criticised, as including with the 
class of contracts whose foundation is in the legislative action 
of the States, many which were not properly intended to be 
so included by the framers of the Constitution. And it is un¬ 
doubtedly true that the Supreme Court itself has been com¬ 
pelled of late years to insist in this class of cases upon the ex¬ 
istence of an actual contract by the State with the corporation, 
when relief is sought against subsequent legislation. 

The main feature of the case, namely, that a State can 


make a contract by legislation, as well as in any other way, 
and that in no such case shall a subsequent act of the legis¬ 
lature interpose any effectual barrier to its enforcement, where 
it is enforceable in the ordinary courts of justice, has re¬ 
mained. The result of this principle has been to make void 
innumerable acts of State legislatures, intended in times of 
disastrous financial depression and suffering, to protect the 
people from the hardships of a rigid and prompt enforcement 
of the law in regard to their contracts, and to prevent the 
States from repealing, abrogating, or avoiding by legislation 
contracts entered into with other parties. 

This decision has stood from the day it was made to the 
present hour as a great bulwark against popular effort through 
State legislation to evade the payment of just debts, the per¬ 
formance of obligatory contracts, and the general repudiation 
of the rights of creditors. I cannot even refer here to the 
numerous decisions by the Supreme Court of the United 
States, of the subordinate courts of the Government, and the 
highest courts of the States themselves, in which, under the 
influence of this decision, the principle of the Constitution that 
no State shall pass any law impairing the obligation of con¬ 
tracts has been upheld for the protection of those contracts. 

With the case of Gibbons vs. Ogden, 9 Wheat., i, which 
has always been considered a leading one, commenced a 
series of decisions which has continued down to the term of 
the court just ended, construing the third clause of Section 
8, Article I., of the Constitution of the United States. The 
language of this clause is that “ Congress shall have power 
to regulate commerce with foreign nations, and among the 
several States, and with the Indian tribes.” 

There has not been, during the history of the Govern¬ 
ment, any serious question or difficulty about the exercise of 
the power by Congress to regulate commerce with the Indian 
tribes. The few laws which that body has found it necessary 
to pass in regard to trade and intercourse with the Indians 


53 


have given rise to very few controversies before the courts. 
The power to regulate commerce with foreign nations has 
necessarily occupied the attention of the legislative body, and 
the questions arising under it have principally been as to the 
construction of the statutes, with an occasional contest as to 
the power to regulate immigration into the various States 
from foreign countries. 

But as regards the regulation of commerce among the 
States, Congress has signally failed in providing any general 
system, or in enacting any very important laws upon the sub¬ 
ject. In point of fact, the commerce in existence which could 
be regulated with any profit, or called for it at the time the 
Constitution was formed, was that upon the ocean, carried on 
by sailing vessels, and it was not until the origin of the steam¬ 
boat, making the great rivers of the country equal in carry¬ 
ing capacity to seas, with the superadded power of steam to 
make them useful, that interstate commerce became a matter 
of much consequence. Afterwards the invention of railroads 
increased the magnitude of this kind of traffic, so that in rel¬ 
ative importance to foreign commerce it is now so much supe¬ 
rior that I dare not, without consulting the statistics, under¬ 
take to state what it is. 

Very soon after the introduction of the steamboat, whose 
use was accompanied by great dangers in the navigation of 
the interior rivers of the country. Congress began to legis¬ 
late upon the subject, and finally established, some forty or 
fifty years ago, a system of laws regulating their construction 
and navigation. The various acts passed from time to time 
also required that the masters and pilots of these vessels 
should be regularly examined as to their qualifications and 
licensed by officers appointed by the General Government, and 
prescribed with great minuteness what safeguards they should 
keep on board in the way of life-saving implements and small 
boats, and limiting the number of passengers, had especial 
regard to their comfort and their safety. 


54 


But in relation to railroads, whose owners were corpora¬ 
tions under charters from the different States of the Union, 
such legislation as was needful has been left by Congress to 
the States who chartered them, or through whose territory 
they extended. 

This inaction of the Congress of the United States, which 
it was asserted could alone establish regulations for the con¬ 
trol of railroads in conducting transportation of persons and 
property through more States than one, thus coming within 
the definition of the phrase ‘'Interstate commerce,” has at 
length been superseded by a very important statute, called 
the interstate commerce law, passed at the recent session. 
These railroad corporations, the necessity and value of which 
to meet the wants of this great country grew so rapidly, as¬ 
serted for a long time that by virtue of the charters granted 
them by the States, they were exempt from nearly all legisla¬ 
tive control over their business, their contracts, or the man¬ 
ner in which their transportation should be conducted. 

In the case of Mimri vs. Illinois, 94 U. S., 113, Chicago, 
Btirlington arid Quincy R. R. Co. vs. Iowa, Id., 155, and Peik 
vs. Northwestern R. R. Co., Id., 164, decided at the same time, 
it was held by the Supreme Court that as common carriers 
they were subject to appropriate regulation of the manner 
in which their business should be conducted, by legislative 
authority. But these decisions left the question of how far 
this legislative power of regulation belonged to the States 
and how far it was in the Congress of the United States un¬ 
decided. 

The case of Gibbons vs. Ogden, above referred to, origi¬ 
nated in an attempt of the State of New York to pass laws 
which affected free navigation upon the Hudson river by 
steamboats. With the idea of rewarding Fulton & Living¬ 
ston for the invention of the new method of propulsion by 
steam, a statute was passed giving to them the exclusive 
right of navigating that river with boats thus propelled. 


55 


Other persons coming into the business of transportation with 
boats of a similar character, contested this right to such exclu¬ 
sive privilege, and were sued for infringing it in those waters. 

The questions arising in that case were argued with 
great ability, Mr. Webster being one of the counsel engaged in 
the case, and one of the best considered opinions of the court 
was delivered by Chief Justice Marshall. It is not important 
here to detail the substance of that argument, but the two 
questions that were mostly discussed related to the following 
conclusions which were reached by the court:— 

First .—That this statute was an exercise of the power 
of regulating commerce among the States, which had been 
confided to Congress by the Constitution. 

Second .—That inasmuch as Congress had passed laws 
authorizing the licensing of vessels for the coasting trade, 
which authorized them to navigate all the waters within the 
jurisdiction of the United States capable of being used for 
that purpose, this act was an exercise of the power conferred 
by the clause of the Federal Constitution concerning com¬ 
merce among the States, and that Congress having occupied 
the field by its own legislation, this necessarily excluded the 
action of the State upon the subject. 

While the opinion of the court undertakes to ascertain 
what kind of commerce must be regulated exclusively by 
Congress it also seems to concede that there may be a class 
of regulations affecting it when carried on between the States 
which would be valid in the absence of any action by Con¬ 
gress. But the case rested in the end upon the proposition 
that such a principle could not be applied to the case then 
before the court, because Congress had acted upon the sub¬ 
ject, having passed a law or made a regulation which was in¬ 
consistent with the statute of the State of New York grant¬ 
ing this exclusive privilege to Livingston & Fulton. 

In the subsequent case of Wilson vs. Blackbird Creek 
Marsh Co., 2 Pet, 245, the principle was laid down, that in a 


56 


class of cases, local in their character, regulations affecting 
interstate commerce may be enacted by the States in the 
absence of the exercise of that power by Congress. That 
proposition, which in a subsequent stage of the history of the 
court was very much controverted, and upon which it had 
been divided until within recent years, has led to much un¬ 
certainty as to the validity of laws passed by the States of 
the Union. This doubtful condition of affairs can hardly yet 
be considered to be at an end. The great necessity of some 
well-defined rule in regard to these matters, in the absence 
of any Congressional regulation of commerce, is evinced by 
the fact that scarcely a session of the Supreme Court of the 
United States has passed within the last twenty-five years in 
which some case has not been brought before it wherein the 
validity of laws passed by the States of the Union, or ordi¬ 
nances of municipalities made under the authority of some 
State laws affecting commerce, has not been brought up and 
controverted, and become the subject of serious consider¬ 
ation. 

I venture to hope, however, that some of the decisions 
discussing these questions, made during the term of the 
court just expired, have brought it to a substantial unanimity 
upon these subjects, and have established a reasonable de¬ 
gree of precision in the definition of the regulations of inter¬ 
state commerce exclusively within the control of Congress, 
and what legislation remains to the States where Congress 
has taken no action in regard to the matter. Wabash Ry. 
Co. vs. Illmois, ii8 U. S., 557; Fargo vs. Michigan, 121 
U. S., 230 ; The Mail Steamship Co. vs. Pennsylvafiia, de¬ 
cided May 23d, 1887. 

The importance of the subject, and the necessity of a 
true construction of this clause of the Constitution, may be 
seen when we consider the trouble among the States between 
the time of the closing of the Revolutionary war and the 
adoption of that instrument, in regard to their interstate 


it 


V 


57 


commerce, and to burdens and obstructions placed upon it 
by each of the States as they seem to consider their own in¬ 
terest, without regard to the general good. Indeed, these 
considerations were among the principal, if not the most 
weighty, which induced its formation. And the cases to 
which I have referred as coming before the Supreme Court 
of the United States are ample evidence of what the States 
would now do, if they had the power, in crippling the inter¬ 
state commerce of this country, by imposing burdens upon 
its exercise; and the efforts of the States, endeavoring to 
shift the burden of taxation from their own shoulders and 
impose it upon the property, rights, and interests of others 
could only end in the destruction of the Union and the total 
suppression of the free and valuable commerce now carried 
on between the States. 

The relations of the Indian tribes to the States and to 
the Federal Government have often been before the Supreme 
Court of the United States, whose judgments have largely 
influenced the course of legislation by Congress, as well as 
the States, in regard to those tribes. The first case involving 
those relations was that of the Cherokee Nation vs. The State of 
Georgia, 5 Pet., 1, in which the court, considering the general 
subject, held that these tribes, although occupying a semi¬ 
independent position, which enabled them to make treaties 
with the United States, were neither States of the Union nor 
foreign States in the sense of the Constitution which confers 
jurisdiction upon the Supreme Court in controversies be¬ 
tween a State or the citizens thereof and foreign States, citi¬ 
zens, or subjects. It declared that these tribes were, owing 
to their peculiar conditions, wards and pupils of the nation, 
and largely under its control. 

In the succeeding case of Wooster vs. The State of Geor¬ 
gia, 6 Pet., 315, the same proposition is advanced, and it was 
held that they were independent of the laws and government 
of the State within which they might as a tribe be located. 


58 


This latter case was one in which the State of Georgia, hav¬ 
ing passed a statute extending the jurisdiction of its laws 
over the Cherokee lands, indicted and imprisoned Wooster, 
a missionary of some Christian church, who had settled among 
those Indians, for a violation of a law of the State. He was 
convicted by the State courts and sent to prison. On a writ 
of error to the Supreme Court of the United States it was 
held that the State courts of Georgia had no jurisdiction over 
the Indian tribes, or the land which they had held in possession 
from time immemorial. 

This principle seems to have settled the independence of 
those tribes of State legislation and State jurisdiction generally, 
but it afterwards came to be questioned what power the 
Government of the United States or Congress could exercise 
over such Indians. This matter came up in United States vs. 
Kagama, ii8 U. S., 375. The whole subject there was fully 
reviewed, and the proposition finally established that “ while 
the Government of the United States has recognized in the 
Indian tribes heretofore a state of semi-independence and 
pupilage, it has the right and authority, instead of controlling 
them by treaties, to govern them by acts of Congress; they 
being within the geographical limit of the United States, and 
being necessarily subject to the laws which Congress may 
enact for their protection and for the protection of the people 
with whom they come in contact. The States have uo such 
power over them as long as they maintain their tribal 
relations.” 

This settled a difficult and vexatious question, and one 
very important to the Indians themselves as well as to the 
citizens of the United States who are brought in contact 
with them. 

Perhaps the two most important decisions of the Supreme 
Court that have been delivered in many years grew out of 
the agitation of the subject of slavery. The long and continued 
discussion of that topic, in and out of Congress, commencing 


59 


at a time not within the memory of any one in this audience, 
and prolonged up to the close of the late civil war, which was 
the cause of that war, the most destructive that the history of 
mankind presents, almost necessarily brought before the great 
judicial tribunal of the nation grave questions in regard to 
the constitutional power of Congress over the subject. With 
the exception, however, of Prigg vs. Pemisylvania, i6 Pet., 539, 
in which an act of Congress to enable the owners of fugitive 
slaves who had fled from service and got beyond the borders 
of the State in which such owners resided, was held to be a 
proper exercise by Congress of the provisions of the Consti¬ 
tution for the return of persons held to service in the States 
to which they belonged, which itself excited much comment. 
The Dred Scott decision [Dred Scott vs. Sanford, 19 How., 393) 
overshadowed all others on the subject, in the importance of 
the principles which it laid down, and in the immense influence 
which it had upon the history of the country. 

Dred Scott, a slave, having been taken from the State 
of Missouri, in which laws authorizing slavery prevailed, by 
his master with his family into the Territory of Minnesota, in 
which slavery was forbidden, was afterwards carried back by 
that master to the State of Missouri. Scott asserted that 
having been voluntarily carried by his master into a govern¬ 
ment where slavery was not recognized, he thereby became a 
free man, and that Sanford, his owner, in exercising restraint 
over his personal liberty was a trespasser. He therefore 
brought suit to establish his freedom, and the case came in 
regular order in the Supreme Court of the United States, 
which, after some controversy in regard to the jurisdiction of 
that court, finally decided that it had jurisdiction to entertain 
the appeal. It then proceeded to decide the question of the 
effect of the residence of Scott, with the consent of his mas¬ 
ter, in the free Territory of Minnesota. It held that there 
existed no power in the Congress of the United States to 
pass any laws for the government of a Territory of the 




6o 


United States, by which owners of slaves could be prevented 
from carrying them there and making it their residence, and 
still retaining the same power and control over their slaves 
which they had in the States where slavery was established. 

This decision was made very soon after Congress had 
passed a statute for the organization of territorial govern¬ 
ments for Kansas and Nebraska, and the question whether 
slavery should be excluded from those Territories or not by 
the act agitated the public mind to a degree perhaps un¬ 
known since the formation of the Constitution. To pass a 
law recognizing as valid the institution of slavery in these 
Territories was not only a violation of the strongest feelings 
of a large portion of the people of the United States, but it 
was necessarily a repeal of what was called the compromise 
on that subject at the time that the Territory of Missouri was 
admitted as a State. At that time the same excited contro¬ 
versy existed, and was only settled by a provision that in future, 
slavery should not exist north of a line corresponding with the 
southern line of Missouri, extending westward, namely, the 
parallel of 36° 30' north latitude. The decision in the Dred 
Scott case, that Congress had no power to pass any law for¬ 
bidding slavery in any of the Territories of the United States, 
from which it necessarily resulted that the Missouri Compro¬ 
mise law was unconstitutional, added to the flames of popular 
excitement. 

I do not need to go over the history of the contest which 
led to the attempted secession of eleven of the slave States 
of the Union, and to the civil war of four years which followed 
this effort to secede. The unparalleled excitement of the 
public mind, brought about by the act organizing the Terri¬ 
tories of Kansas and Nebraska, which repealed the Missouri 
Compromise law, so far from being mitigated by the Dred 
Scott decision, it added fuel to the flame. It was charged that 
the decision was merely a partisan effort to aid in the estab¬ 
lishment of slavery in the rich soil of Kansas, and it added 


6i 


force to the determined purpose of those opposed to the 
further progress of slavery, to prevent it. If that statute 
had not been passed it is not within the capacity of human 
wisdom to tell how long the great contest over human slavery 
within the limits of the United States might have been post¬ 
poned. 

This decision has never been reconsidered in the Su¬ 
preme Court of the United States. Its operation upon pub¬ 
lic opinion was to incite to additional ardor the efforts of 
those who desired the emancipation of the slaves ; and, al¬ 
though the decision itself was of no value and only precipi¬ 
tated the evils which it was intended to avoid, the civil war 
brought about by these events resulted in the abolition of 
slavery throughout the entire extent of the United States, 
and, of course, the Dred Scott decision became a useless in¬ 
cumbrance in the reports of that court. 

At the close of the war the public sentiment of those 
who had conducted it to a successful termination required 
certain amendments to the Constitution, the first of which, 
the Thirteenth, established the abolition of slavery forever 
within all the dominions over which the United States had 
jurisdiction. It was soon found, however, that the sudden 
gift of freedom to over four millions of human beings, who 
had been slaves, and who were unprepared by education or 
training to assert their rights or protect themselves against 
those who had been their masters for generations past, re¬ 
quired some additional safeguards in the Constitution, which 
would operate as a protection to them against those masters, 
or the acts of the States themselves readmitted into the 
Union. This induced the passage of the Fourteenth Amend¬ 
ment, which declared all these former slaves now to be citi¬ 
zens of the United States, and entitled to all the privileges 
and immunities of such citizens. It further enacted .provi¬ 
sions for the equality of rights of all persons, intending there¬ 
by to secure the rights of this depressed race, and to protect 


62 


them from unjust and unequal laws which might be passed 
by the States for the purpose of their oppression. 

A short experience seemed to prove that even these two 
amendments, the one abolishing slavery and the other with 
the provisions mentioned, were inadequate to secure the pur¬ 
pose which the people had in view, that of guaranteeing equal 
rights to all persons, including former slaves. The Fifteenth 
Amendment was therefore passed, which declared that no dis¬ 
crimination in regard to the right of suffrage should be made 
in any State on account of race, color, or previous condition 
of servitude. 

These three amendments to the Constitution, the Thir¬ 
teenth, Fourteenth, and Fifteenth, were rapidly passed through 
Congress and ratified by the States. They have been the sub¬ 
ject of many decisions of the Supreme Court of the United 
States, with regard to their construction and their effect upon 
enactments of the State legislatures, which have been sup¬ 
posed to be in conflict with them. The most important of 
these cases, and perhaps the first one which came before the 
court, and which by reason of the questions involved and the 
course of the argument required a construction of all three 
of these amendments, were the Slaughter House Cases, so 
called, reported in i6 Wallace, 36. They grew out of an act 
of the Legislature of Louisiana, passed since it had been re¬ 
cognized as a State of the Union after the close of the civil 
war. This statute, assuming to regulate the business of 
slaughtering animals for food within the limits of the city of 
New Orleans, and of the landing of live animals as they came 
into the city, created a corporation upon which it conferred 
the exclusive right of killing animals for food within that city. 
It directed the place where they should be landed, the place 
where they should be slaughtered, made full and complete 
regulations for the maintenance of a public slaughter-house 
by this corporation, at which all butchers must slaughter the 
animals whose flesh they intended to sell, required this cor- 


63 


poration to provide all the conveniences necessary for this 
purpose, and made proper restrictions upon the price which 
should be charged therefor. 

After a while the butchers of the city, who considered 
this monopoly an invasion of their personal rights, brought 
suit to enjoin the exercise of this authority by the slaughter¬ 
house company. The case came finally to the Supreme Court 
of the United States, upon the ground that by the three 
amendments to the Constitution, to which I have just refer¬ 
red, the exercise of this power by a State legislature is for¬ 
bidden. The whole subject was very fully argued in that 
court, and the range of discussion was very wide. 

At the close of the civil war there were many very wise 
and patriotic statesmen who had come to the conclusion that 
the powers left with the States in the original formation of 
the Constitution, by which they were enabled to combine and 
organize into a formidable confederacy for the overthrow of 
the Government and the destruction of the Union, had been 
the source of a protracted and terrible war, which was just 
terminated by the re-establishment of the General Govern¬ 
ment in all its original powers. They therefore felt, that in 
the amendments to the Constitution^ which were deemed 
necessary for the reconstruction of this Union, which if not 
broken was very much shattered, these powers of the States 
should be curtailed in their capacity to bring about another 
such catastrophe. Many of these men were in Congress 
when the resolutions for these amendments were adopted, 
and proposed to the States for their ratification. The mem¬ 
bers of that body undoubtedly differed among themselves as 
to the effect to be attained, and the manner in which it was 
to be accomplished, by these three amendments. When 
this case came up, the first in which the Supreme Court was 
called upon to construe them, the opinions of the judges, of 
lawyers, and of statesmen, were divergent in regard to the 
principles which should govern that construction. 


64 


These views are represented in the opinions filed in the 
case mentioned, the opinion of the court being fully concur¬ 
red in by five of the judges. The court, after speaking of 
the fact that the civil war disclosed that the true danger to 
the perpetuity of the Union was in the capacity of the States 
to organize, combine, and concentrate all the powers of a 
State and all contiguous States to resistance to the General 
Government, said :— 

“Unquestionably this has given great force to the argu¬ 
ment, and added largely to the number of those who believe 
in the necessity of a strong national government. But, 
however prevailing this sentiment, and however it may have 
contrihuted to the adoption of the amendments we have 
been considering, we do not see in those amendments any 
purpose to destroy the main features of the general system. 
Under the pressure of all the excited feeling growing out of 
the war, our statesmen have still believed that the existence 
of the States with powers for domestic and local government, 
including the regulation of civil rights—the rights of person 
and property—was essential to the perfect working of our 
complex form of government, though they have thought 
proper to impose additional limitations upon the States, and 
to confer additional powers on that of the United States. 
But whatever fluctuations may be seen in the history of pub¬ 
lic opinion on this subject during the period of our national 
existence, we think that it will be found that this court, so 
far as its functions required, has always held with a steady 
and an even hand the balance between State and Federal 
power, and we trust that such may continue to be the history 
of its relation to that subject so long as it shall have duties 
to perform which demand of it a construction of the Con¬ 
stitution, or of any of its parts.” [Slaughter House Cases, 
i6 Wall., 82.) 

Although this decision did not meet the approval of four 
out of nine of the judges on some points on which it rested, 


65 


yet public sentiment, as found in the press and in the univer¬ 
sal acquiescence which it received, accepted it with great 
unanimity; and although there were intimations that in the 
legislative branches of the Government the opinion would be 
reviewed, and criticised unfavorably, no such thing has oc¬ 
curred in the fifteen years which have elapsed since it was de¬ 
livered. And while the question of the construction of these 
amendments, and particularly the Fourteenth, has often been 
before th6 Supreme Court of the United States, no attempt 
to overrule or disregard this elementary decision of the effect 
of the three new constitutional amendments upon the rela¬ 
tions of the State governments to the Federal Government 
has been made; and it may be considered now as settled 
that, with the exception of the specific provisions in them for 
the protection of the personal rights of the citizens and people 
of the United States, and the necessary restrictions upon the 
power of the States for that purpose, with the additions to 
the powers of the General Government to enforce those pro¬ 
visions, no substantial change has been made. The necessity 
of the great powers, conceded by the Constitution originally 
to the Federal Government, and the equal necessity of the 
autonomy of the States and their power to regulate their 
domestic affairs, remain as the great features of our complex 
form of government. 

The only other decision of the Supreme Court to which 
I shall call your attention is that of Kilbourn vs. Thompson, 
103 U. S., 168. It is principally remarkable as establishing 
the right of a party to recover damages for an unlawful im¬ 
prisonment by the express order of the House of Represen¬ 
tatives. That body, as well as the Senate, had been in the 
habit of calling witnesses before them to testify in regard to 
various matters concerning which an investigation had been 
ordered by one or the other of those bodies. They also 
seem to have exercised without hesitation the power to punish 
by fine and imprisonment any witness who refused to answer 


66 


questions which by order of the particular body authorizing 
the investigation had been propounded to him, and without 
much if any regard to the limitation upon their right to ex¬ 
ercise this power. 

Under a resolution, which recited that the Government 
was a creditor of the banking firm of Jay Cooke & Company, 
then in bankruptcy by the decree of the District Court of the 
United States for the Eastern District of Pennsylvania, and 
that settlements had been made adverse to the interests of 
the United States in that court, a special committee of the 
House of Representatives was appointed by the Speaker to 
inquire into the matter, together with the history of a real 
estate pool, in which that firm was said to be involved. In 
the progress of the investigation Mr. Kilbourn, who was a 
real estate dealer in the city of Washington, was called be¬ 
fore the committee and required to make statements in 
regard to his dealings with various persons who had had 
transactions with him, and to produce his books for the gen¬ 
eral inspection of the committee. He declined to do this, 
and being brought before the House he was ordered to make 
answer. Still further declining, the House ordered him to be 
imprisoned, and that the Speaker issue his warrant to the 
Sergeant-at-Arms to commit him for contempt. 

Mr. Kilbourn was held in confinement under this order 
for some time, but was finally released on a writ of habeas 
corpus issued by the Chief Justice of the Supreme Court of 
the District of Columbia. He then brought suit against the 
Sergeant-at-Arms, by whom he was kept in prison, and 
against the members of the committee who were active in 
procuring the order of the House for his punishment. On a 
demurrer to the answer of the defendants, which set up this 
order of the House as their defense, the Supreme Court of 
the District of Columbia held the answer to be good; but on 
a writ of error to the Supreme Court of the United States 
that decision was reversed. 




67 


The opinion goes into a thorough examination of the 
history of this class of questions in various cases before the 
House of Commons of Great Britain, which were afterwards 
carried to the courts of that country, and comes to the con¬ 
clusion that, while in that country, by reason of the history 
of the Parliament, and of its original possession of full judi¬ 
cial powers, the House of Commons could punish for con¬ 
tempt, there is no inherent authority in any purely legislative 
body, apart from that remnant of judicial power remaining in 
the Parliament, to punish parties for offenses of that char¬ 
acter. 

Referring to the Constitution of the United States, under 
which alone Congress, as an entire body or either branch of 
it, could exercise any such power, it is declared that there is a 
total absence of any general grant of such authority, but inas¬ 
much as each branch of Congress had certain specific powers 
to make orders which required the examination of witnesses, 
that in that class of cases, where a witness refused to testify, 
the House could enforce this duty by fine and imprisonment 
as a punishment for contempt. Those occasions were limited 
to such cases as punishment of its own members for disor¬ 
derly conduct, or failure to attend sessions, or in cases of 
contested elections, or in regard to the qualifications of its 
own members, or in case of an effort to impeach an officer of 
the Government, and perhaps a few others. 

It was held that neither house had any right to organize 
an investigation into the private affairs of a citizen, and that 
except in a case in which the Constitution expressly conferred 
upon the one body or the other powers which were in their 
nature somewhat judicial, and which required the examina¬ 
tion of witnesses, they possessed no power to compel by fine 
or imprisonment, or both, the attendance of such witnesses, 
and answers to interroeatories which did not relate to some 
question of which it had jurisdiction. 

This decision, which ultimately resulted in the recovery 


68 


of a large judgment by Mr. Kilbourn against the Sergeant-at- 
Arms, which sum was paid by an appropriation made by the 
Congress of the United States out of the treasury, was 
everywhere received with satisfaction. It has been followed 
in the States of the Union where similar questions have con¬ 
stantly arisen, and is undoubtedly, on account of the assertion 
by it of the right of the citizen to be protected against the 
legislative body, and to be proceeded against for any offense 
only in the judicial branch of the Government, one of the 
most important that has been made in recent years. It is also 
important as being in some sense a direct control by the Su¬ 
preme Court of the United States over the decisions and acts 
of one of the branches of the legislative department of the 
Government, made without authority of the law. 

It is proper also to observe that the court decided that 
the members of the committee who had propounded these 
questions to Kilbourn, and at whose instance the House 
passed the resolution for his imprisonment, were not liable to 
his action for damages, on the ground that what they did 
came within, the constitutional provision that “ Senators and 
Representatives * shall in all cases, except treason, 
felony, and breach of the peace, be privileged from arrest 
during their attendance at the session of their respective 
Houses, and in going to and returning from the same ; and 
for any speech or debate in either House, they shall not be 
questioned in any other place.” Article I., Section 6. 

This court, of which we have been speaking, whether we 
take the character of the suitors that are brought before it, or 
the importance of the subjects of litigation over which it has 
final jurisdiction, may well be considered one of the highest 
that the world has ever seen. It has the power to bring 
States before it, States which some of our politicians have 
been in the habit of considering sovereign, not only when 
they come voluntarily but by judicial process they are sub¬ 
jected, in certain classes of cases, to the judgment of the 


6 


.■iA' 




69 


court. Whatever these States may have been at the time of 
the formation of the Constitution they now number their in¬ 
habitants by millions, and in wealth and civilization are equal 
to many of the independent sovereignties of Europe. 

The subject-matter of which this court has jurisdiction is 
the construction and exposition of the Constitution of the 
United States, which controls the affairs of sixty millions 
of people. Its every-day business, almost, is to pass upon 
the question of conflicting rights and jurisdictions between 
the States and the United States, and between the laws 
framed by each of this class of political bodies. Its judges 
hold their offices for life, unless removed by impeachment. 
But one attempt has been made in the history of the Gov¬ 
ernment to impeach a member of that court, and that effort 
failed. 

It has been said that these powers may be dangerous to 
the people, and to the other departments of the Government, 
but the answer to this is both true and perfect. The judicial 
branch of the Government, of which the Supreme Court is 
the head, is the weakest of all the three great departments 
into which the power of the nation is divided. It has no 
army, it has no navy, and it has no purse. It has no patron¬ 
age, it has no officers, except its clerks and marshals, and the 
latter are appointed by the President and confirmed by the 
Senate. They are the officers to whom its processes are sent 
for the enforcement of its judgments, but they may be re¬ 
moved at any time by the Executive. The clerks, whom 
the judges in some form or other are permitted to appoint, 
have salaries or compensation regulated by the legislature. 
The clerk who may receive $ 20 , 000 , or more, in fees, must 
pay all but $3500 of such receipts into the treasury of the 
United States. The judges themselves are dependent upon 
appropriations made by the legislature for the payment of 
the salaries which support them while engaged in the func¬ 
tions of their office. 


70 


It is, then, so far as the ordinary forms of power are con¬ 
cerned, by far the feeblest branch or department of the Gov¬ 
ernment. It must rely upon the confidence and respect of 
the public for its just weight and influence, and it may be con¬ 
fidently asserted that neither with the people, nor the country 
at large, nor the other branches of the Government, has there 
ever been found wanting that respect and confidence. It is 
one of the best tributes which can be paid to the American 
nation, a tribute which it deserves above all others, even of 
Anglo-Saxon descent, and which can be paid to no other 
race, that it always submits to the law as', expounded b^'it^ 
judiciary. In all the excitements of bitter contests, involving 
great financial interests, power, position, and even political 
existence, in fact everything which could properly be brought 
within its judicial cognizance, the people have always felt that 
their interests were safely entrusted to its charge. 

That the court may long continue to deserve this confi¬ 
dence, as it has for the past hundred years, must be ,the 
desire of every patriotic citizen. 





